Presidency scholar Andrew Rudalevige has this exactly right:
The point is that those framing this process as a presidential gift to be given have it backwards — even leaving aside the niceties of the law (the topic of my next post, stay tuned). A Congress with institutional pride (with ambition aiming to counteract ambition, in Madison’s famous turn of phrase in Federalist #51) would have acted on its own. Indeed, legislators who signed on to letters to Obama demanding that he reconvene Congress and ask for authorization were given credit for being assertive. Yet why were those letters written to Obama in the first place, and not to the House and Senate leadership?
It’s funny; everyone always hates Congress, but all too often when something really is about Congressional misbehavior (and not just House or Senate, or just Democrats or Republicans), everyone wants to blame it on … the president.
I’m normally a Congress defender, which is exactly why in cases of executive “overreach” on war powers I usually blame Congress, not the president. As Rudalevige says, the key text here is Federalist 51. The way the system is supposed to work — the way that it’s supposed to generate power for the nation overall — is by competition among politicians to control, or at least to influence, policy (and not just politicians; individuals and organized groups can affect policy, too, most especially by pushing Members of Congress to act). Too often, Congress as an institution has just dropped the ball, preferring to duck decisions rather than to risk responsibility.
So we’re going to get a round of Congressional action. If I had to guess, it probably ends with President Obama getting authorization to do what the national security portions of the executive branch have been pushing for him to do all along; if I had to guess, Congressional debate also will be accompanied by a lot of self-congratulatory rhetoric, just as it was in the debate over the Gulf War during George H.W. Bush’s presidency. And if I had to guess, pundits will agree that this is How Congress Should Act.
Don’t believe it. How Congress should act would have involved months of hearings on Syria. It would have involved tough questions for Chuck Hagel, John Kerry and other executive branch nominees when they were up for confirmation, perhaps with commitments for action once they were confirmed. It wouldn’t have involved waiting to see if the president would ask them to act.
So good for Obama for forcing Congress to get involved, but don’t forget as this process moves forward that it’s not his job to ask Congress; under the constitutional system, Congress is supposed to be stepping up and acting. And for those looking to reform the system, I’d advise less worry about finding a way to rein in presidential overreach, and more effort to change Congressional incentives in order to make it more likely they will assert themselves in the future.